The Utilities Contracts (Scotland) Regulations 2016
| Year | 2016 |
2016 No. 49
Public Procurement
The Utilities Contracts (Scotland) Regulations 2016
Made 26th January 2016
Laid before the Scottish Parliament 28th January 2016
Coming into force in accordance with regulation 1
The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 19721and all other powers enabling them to do so.
These Regulations make provision for a purpose mentioned in that section and it appears to the Scottish Ministers that it is expedient for the following EU instruments to be construed as references to those EU instruments or provisions of those EU Instruments (as appropriate) as amended from time to time where they are expressly mentioned as such in these Regulations—
(a) Council Regulation (EEC) No 2913/92establishing the Community Customs Code2;
(b) Directive 1999/93/ECof the European Parliament and of the Council on a Community framework for electronic signatures3;
(c) Regulation (EC) No. 2195/2002of the European Parliament and of the Council on the Common Procurement Vocabulary4;
(d) Directive 2004/39/ECof the European Parliament and of the Council on markets in financial instruments amending Council Directives 85/611/EECand 93/6/EECand Directive 2000/12/ECof the European Parliament and of the Council and repealing Council Directive 93/22/EEC5;
(e) Commission Decision 2009/767/ECsetting out measures facilitating the use of procedures by electronic means through the points of single contact under Directive 2006/123/ECof the European Parliament and of the Council on services in the internal market (notified under document C(2009) 7806)6;
(f) Commission Decision 2011/130/EUestablishing minimum requirements for the cross-border processing of documents signed electronically by competent authorities under Directive 2006/123/ECof the European Parliament and of the Council on services in the internal market (notified under document C(2011) 1081)7;
(g) Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC8;
(h) Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European standardisation, amending Council Directives 89/686/EECand 93/15/EECand Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/ECand 2009/105/ECof the European Parliament and of the Council and repealing Council Decision 87/95/EECand Decision No 1673/2006/ECof the European Parliament and of the Council9;
(i) Directive 2010/13/EUof the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in member States concerning the provision of audio-visual media services10; and
(j) Directive 2014/25/EUof the European Parliament and of the Council on procurement entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC11,
and they are to be construed accordingly.
PART 1
GENERAL
CHAPTER 1
CITATION, COMMENCEMENT, EXTENT, DEFINITIONS AND SUBJECT-MATTER
Citation, commencement and extent
1.—(1) These Regulations may be cited as the Utilities Contracts (Scotland) Regulations 2016.
Commencement
(2) Subject to paragraphs (3) and (4), these Regulations come into force on 18th April 2016.
(3) Regulation 38(1) to (7) (rules applicable to communication) comes into force—
(a)
(a) for the purposes of regulations 50 (dynamic purchasing systems), 51 (electronic auctions), 52 (electronic catalogues), 61 (communication of technical specifications), 69(1) (form and manner of sending notices for publication at EU level) and 71 (electronic availability of procurement documents) on 18th April 2016;
(b)
(b) for the purposes of regulation 53(6) (centralised purchasing activities and central purchasing bodies) on 18th April 2017; and
(c)
(c) for all other purposes on 18th October 2018.
(4) Regulation 53(6) (centralised purchasing activities and central purchasing bodies) comes into force on 18th April 2017.
(5) Extent
These Regulations extend to Scotland only.
Interpretation
2.—(1) In these Regulations—
“accelerated open procedure” means an open procedure in which the utility has exercised the power conferred by regulation 43(5) (open procedure) to fix a time limit for the receipt of tenders which is shorter than the minimum specified in regulation 43(3) (open procedure);
“ancillary purchasing activity” means activity consisting of the provision of support to a purchasing activity, in particular in any of the following forms—
(a) technical infrastructure enabling a utility to award a contract or to conclude a framework agreement for works, supplies or services;
(b) advice on the conduct or design of procurement;
(c) preparation and management of procurement for and on behalf of the utility concerned;
“buyer profile” means a page on the internet set up by a utility containing one or more of the following: periodic indicative notices, information on on-going invitations to tender, prospective and concluded contracts, cancelled procedures and any useful general information such as a contact point, telephone number, facsimile number, postal address or e-mail address;
“body governed by public law” means a body that has legal personality, is established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and which—
(a) is financed for the most part by the State, regional or local authorities, or by any other body governed by public law;
(b) is subject to management supervision by any such authority or body; or
(c) has an administrative, managerial or supervisory board more than half the members of which were appointed by any body referred to in sub-paragraph (a);
“call for competition” means a call for competition made in a manner permitted by regulation 42(5) (choice of procedures) or, where relevant, one of the notices referred to in regulation 89(1) (publication of notices) or a contest notice;
“candidate” means an economic operator that has sought an invitation or has been invited to take part in—
(a) a restricted procedure;
(b) a negotiated procedure with prior call for competition;
(c) a negotiated procedure without prior call for competition;
(d) a competitive dialogue procedure; or
(e) an innovation partnership;
“central purchasing body” means a utility or contracting authority which provides one or more centralised purchasing activities whether or not including an ancillary purchasing activity;
“centralised purchasing activity” means activity conducted on a permanent basis in one of the following forms—
(a) the acquisition of supplies or services intended for a utility;
(b) the award of contracts or the conclusion of framework agreements for works, supplies or services intended for a utility;
“commenced”, in relation to procurement, except where otherwise provided, means—
(a) where a contract notice has been sent to the Official Journal in order to invite offers or requests to be selected to tender for or to negotiate, or be selected to participate in a dialogue in relation to a contract, in respect of a proposed contract, framework agreement or dynamic purchasing system;
(b) where a periodic indicative notice has been sent to the Official Journal, in which case the contract award procedure that has commenced is the procedure for the award of any proposed contract the intention to award which was indicated in the notice, but only if the requirements in regulation 65(3)(a) or (b) (periodic indicative notices) are satisfied;
(c) where the utility has dispatched any form of advertisement seeking offers or expressions of interest in the proposed contract, framework agreement or dynamic purchasing system;
(d) in any case where there is no such advertising, where the utility has contacted any economic operator—
(i) in order to seek expressions of interest or offers in respect of a proposed contract, framework agreement or dynamic purchasing system; or
(ii) in response to an unsolicited expression of interest or offer in respect of a proposed contract, framework agreement or dynamic purchasing system; or
(e) where the utility has sent a notice to the Official Journal in order to hold a design contest;
“Commission” means the European Commission;
“common technical specification” means a technical specification in the field of information and communication technology laid down in accordance with Articles 13 and 14 of Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European standardisation, amending Council Directives 89/686/EECand 93/15/EECand Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/ECand 2009/105/ECof the European Parliament and of the Council and repealing Council Decision 87/95/EECand Decision No 1673/2006/ECof the European Parliament and of the Council12as amended from time to time;
“concession contract” means a “works concession” or “services concession” as defined in paragraph (1) of Article 5 of the Concession Contracts Directive and which includes the transfer of an operating risk as set out in that paragraph;
“Concession Contracts Directive” means Directive 2014/23/EUof the European Parliament and Council on the award of concession contracts13;
“contest notice” means the notice referred to in regulation 92(1) (notices);
“contract”, subject to regulation 111(6) (transitional provision and saving where procurement commenced before 18th April 2016), and except where otherwise provided, means any works, supplies or services contract for pecuniary interest concluded in writing between one or more economic operators and one or more utilities;
“contract notice”, subject to regulation...
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